Welsh v. Correct Care Recovery Sols.

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LONNIE KADE WELSH, Institutional ID No. 6516607, Plaintiff, v. CORRECT CARE RECOVERY SOLUTIONS, et al, Defendants.

Civil Action No. 5:18-CV-020-BQ

United States District Court, N.D. Texas, Lubbock Division

January 17, 2024

REPORT AND RECOMMENDATION ^[1]

D GORDON BRYANT, JR. UNITED STATES MAGISTRATE JUDGE

Pro se Plaintiff Lonnie Kade Welsh asserts claims under 42 U.S.C § 1983 and Texas state law against Defendants Lesley Dinwiddle, Margarita Gonzales, Arnulfo Hernandez, and Bill Vanier, which arise from his confinement at the Texas Civil Commitment Center (TCCC) in Littlefield, Texas. Am. Compl 2-5, 54-56, ECF No. 20.^[2] Defendants now move for summary judgment on all of Welsh's claims (ECF No. 255) and have filed a brief and appendix in support. ECF Nos. 256, 257, 258. Welsh filed a response with an accompanying brief and appendix (ECF No. 266), to which Defendants submitted their reply. ECF No. 267. For the reasons stated herein, the undersigned recommends that the United States District Judge GRANT-in-part and DENY-in-part Defendants' Motion for Summary Judgment. The undersigned further recommends the district judge (1) OVERRULE Welsh's evidentiary objections, (2) OVERRULE as moot Defendants' evidentiary objections based on hearsay, lack of personal knowledge, and conclusory assertions, and (3) OVERRULE Defendants' generalized evidentiary objections to purported contradictory statements.

I. Background and Pleadings^[3]

A. Procedural History

Proceeding pro se and in forma pauperis, Welsh filed this action, alleging multiple claims against thirty-five Defendants in thirteen specific counts, plus additional "miscellaneous claims." See ECF No. 20. In Count 1 of his Amended Complaint, Welsh contends that on January 22,2016, Defendant Vanier used excessive force [hereinafter January UOF], Am. Compl. 4-5. In Count 10, Welsh alleges inter alia that on November 13, 2017, Defendants Dinwiddie, Hernandez, and Gonzales used excessive force against him [hereinafter November UOF]. Id. at 56-57.

On April 24, 2019, the Court entered an Order of Dismissal and Judgment dismissing Welsh's Amended Complaint and all claims therein. ECF Nos, 43, 44. The Court dismissed Counts 1 and 10 as barred under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The Court dismissed Count 1 as Heck-banzd based on Welsh's conviction for assault causing bodily injury due to his biting a TCCC staff member during the January UOF and Count 10 based on Welsh's state court conviction for fabricating evidence in violation of Texas Penal Code § 37.09. During the pendency of Welsh's post-judgment motions and appeal in this case, however, the Seventh Court of Appeals of Texas reversed Welsh's fabrication-of-evidence conviction. Welsh v. State of Texas, 570 S.W.3d 963, 968 (Tex. App.-Amarillo 2019, pet. ref d).

The Texas Court of Appeals' acquittal thereby required reversal by the Fifth Circuit Court of Appeals of this Court's Heck dismissal of the Count 10 excessive force claim and its reinstatement. See Welsh v. Correct Care Recovery Sols., 845 Fed.Appx. 311,316 (5th Cir. 2021). The Fifth Circuit also reversed the dismissal of Welsh's Count 1 excessive force claim, reasoning that "fairly read, the complaint alleges that Vanier's use of excessive force occurred" after Welsh was handcuffed and subdued and no longer resisting. Id. at 316-17. On remand, this Court ordered Defendants to answer in connection with Welsh's allegations. ECF Nos. 81, 107. Defendants filed responsive pleadings. ECF Nos. 110, 112, 126,218.

Contemporaneously, Welsh filed a motion to amend his operative pleading. ECF No. 120. The Court granted the motion in part. ECF No. 157. The Court found "that Welsh . . . timely amended his operative pleading only as to Defendants Gonzales, Hernandez, and Vanier and only as to the following claims and/or factual allegations:"

1. bystander liability claim against Defendant Gonzales;

2. factual allegation that Defendant Hernandez straightened, twisted, and lifted Welsh's left arm "until it popped out of his socket-joint causing extreme pain"; and

3. Texas state law claims against Defendants Gonzales and Hernandez for assault and intentional infliction of emotion distress (IIED), and against Defendant Vanier for assault, IIED, false arrest, and negligence.

Id. at 9. As such, the following claims remain live:

• Defendant Vanier: claim under § 1983 for excessive use offeree based on the January UOF (Am. Compl. 4-5); state law claims for assault, IIED, false arrest, and negligence (ECF No. 157, at 9; ECF No. 120, at 19 [hereinafter Am. Suppl. Compl.]; Am. Compl. 7).

• Defendant Dinwiddie: claim under § 1983 for excessive use offeree based on the November UOF. Am, Compl. 56-57.

• Defendant Hernandez: claim under § 1983 for excessive use offeree based on the November UOF (id.); state law claims for assault and IIED (Suppl. Am. Compl. 17-18).

• Defendant Gonzales: claims under § 1983 for excessive use offeree and bystander liability based on the November UOF (Am. Compl. 56-57; Suppl. Am. Compl. 7 ¶ 10, 9 ¶ 22, 17 ¶ 75); state law claims for assault and IIED (Suppl. Am. Compl. 17-18).

Defendants now move for summary judgment on all claims. ECF No. 255.

B. Parties' Arguments

Through their Brief in Support of the Motion, Defendants argue they are entitled to summary judgment on all of Welsh's claims. As to the January UOF, Defendant Vanier implies that he is not responsible for Welsh's alleged injury, Defs.' Br. in Supp. 10, ECF No. 256 [hereinafter Defs.' Br.]. But regardless, he contends any alleged force was used to maintain or restore discipline. Id. at 11-12. Defendant Vanier also avers that Welsh suffered only "a de minimis injury"-i.e., "two scratches to Welsh's right ring finger." Id. at 10. According to Defendant Vanier, although Welsh alleges he suffered psychological injuries, "Welsh never sought psychiatric treatment and refused to see a mental health provider in April of 2016." Id. at 10-11. Thus, any purported use of force was reasonable and not excessive. Id. at 11-12.

Defendants Dinwiddie, Gonzales, and Hernandez similarly assert that as to the November UOF, their conduct was objectively reasonable. Id. at 11. They allege that Welsh refused orders and "resisted the placement of restraints," thereby justifying some force. Id. Defendants Dinwiddie, Hernandez, and Gonzales maintain that after exiting Welsh's cell, he did not have a "visible injury to [his] face[,] contrary to his claim his eye was bruised." Id. Defendant Hernandez further argues that the video does not reflect he twisted Welsh's arm, nor is there any evidence of serious injury to his shoulder. Id. To the contrary, Welsh apparently refused an x-ray of his shoulder on November 22, 2017, despite complaining of shoulder pain. Id.

Defendant Gonzales alleges that because Welsh cannot establish Defendants Dinwiddie and Hernandez used excessive force, no viable bystander liability claim exists. Id. at 12. Defendant Gonzales maintains that, as reflected by the records, his "only role was as a witness, operating a handheld camera." Id.

Defendants also argue that Welsh's state law claims for assault, I1ED, false arrest, and negligence lack merit. Id. at 12-15, Defendant Gonzales alleges that he did not use force during the November UOF. Id. at 13. And Defendants contend "Welsh has no evidence that [their] conduct was not reasonable in defense of others and/or themselves under the circumstances," thereby entitling them to summary judgment on Welsh's assault claims. Id.

In Defendants' view, Welsh similarly has no evidence establishing the elements of his claim for IIED. Id. Specifically, Defendants aver Welsh "cannot establish Gonzale[s], Hernandez, or Vanier" acted intentionally or recklessly and/or that their conduct was extreme or outrageous." Id. Pointing to the lack of medical records, Defendants allege Welsh cannot demonstrate "he suffered any mental distress or that any distress was severe." Id. at 13-14.

As to Welsh's false arrest claim, Defendant Vanier explains that he did not arrest Welsh; he merely placed him in the Secure Management Unit (SMU) at the TCCC. Id. at 14. In any event, Defendant Vanier states that "Welsh has no evidence that. .. Vanier was not authorized to send Welsh to SMU." Id. He also alleges that Welsh's failure to obey orders and the biting of another staff member during the incident justified his placement. Id. at 14-15. Vanier reasons that "because Welsh was indicted and pled guilty to assault for biting Cpt. Salazar's finger during the January" UOF, the independent-intermediary doctrine broke the chain of causation. Id. at 14-15.

Finally, Defendant Vanier avers that Welsh's negligence claim is not viable because Welsh "has not clearly articulated any legal duty of Vanier . . . and has no evidence of any breach of any duty to [Welsh]." Id. at 15. In Vanier's view, he acted "within his duties as an officer and, as evidenced by the records, Welsh was ultimately disciplined pursuant to TCCC policies." Id.

In support of their Motion, Defendants filed an appendix and seek to incorporate by reference "the factual and legal arguments made by Co-Defendant Ross Hester regarding the November" UOF, as well as Hester's summary judgment evidence, including a video of the incident. Id. at 2.

Welsh first objects to Defendants' summary judgment evidence. PL's Opp'n Resp. 3, ECF No. 266 [hereinafter PL's Resp.]. He maintains that Defendants' evidence contains "hearsay within hearsay," and, other than the videos, they have not submitted "any competent summary judgment evidence." Id. at 3-5. Welsh also seeks, like Defendants, to incorporate by reference Hester's "none [sic] hearsay . .. evidence." Id. at 2.

Turning to the January UOF, Welsh argues...